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New gTLD Subsequent Procedures-Apr09 EN
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ICANN Transcription
New gTLD Subsequent Procedures Working Group
Thursday, 09 April 2020 at 2000 UTC
Note: Although the transcription is largely accurate, in some
cases it is incomplete or inaccurate due to
inaudible passages or transcription errors. It is posted as an
aid to understanding the proceedings at the
meeting, but should not be treated as an authoritative record.
Attendance and recordings are posted on
the agenda wiki page: https://community.icann.org/x/mS2JBw
The recordings and transcriptions of the calls are posted on the
GNSO Master Calendar page:
https://gnso.icann.org/en/group-activities/calendar
JULIE BISLAND: All right. Well, good morning, good afternoon,
and good evening.
Welcome to the new gTLD Subsequent Procedures Working Group
call on Thursday the 9th of April 2020. In the interest of time,
there
will be no roll call. Attendance will be taken by the Zoom room.
If
you are only on the audio bridge, could you please let yourself
be
known now?
Okay. Hearing no names, I would like to remind everyone to
please
state your name before speaking for transcription purposes
and
please keep phones and microphones on mute when not speaking
to avoid background noise. With this, I will turn it back over
to Jeff
Neuman. You can begin, Jeff.
JEFFREY NEUMAN: Thank you very much, Julie. I have a wind behind
me as well, so
hopefully if you do you hear the wind it won’t be too loud. It
was
https://community.icann.org/x/mS2JBwhttps://gnso.icann.org/en/group-activities/calendar
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actually a lot stronger earlier. It knocked the power offline
for a
couple of minutes.
Anyway, I hope everyone is doing okay and sheltering in place
or
staying home. Today we’ve got an exciting agenda, here.
We’re
going to finish up objections. Really, there is just one topic
left to
finish up that we just gave really short shrift to last time so
wanted
to just continue that discussion. Then, we’ll go into the base
registry
agreement and, if we have time, we’ll go into application
change
requests. Let me just first ask if there are any updates to
any
statements of interest? Kristine, please go ahead.
KRISTINE DORRAIN: Thanks, Jeff. I just wanted to let everybody
know that Friday will be
my last day as part of this PDP. I’ve really enjoyed working
with you
all and contributing to this. I'm switching to a different role
at
Amazon so I will not be in this group anymore, but I am still
legally
representing Amazon Registry through Friday. So, I’ll be on for
this
call and then not after that. I just wanted to let everybody
know.
Thank you.
JEFFREY NEUMAN: Thanks, Kristine. Sorry to see you go but glad
you’re moving onto
some other good opportunities. Thank you very much for all
your
participation. Okay. Let me ask if anyone has any agenda items
for
any other business?
I should mention that we did receive a letter from the GAC
today. I
apologize, I have not sent it to the list. I’ll send it during
the call. If
we could just put that as any other business, just so I can
make
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sure I mention it. Christopher, your hand’s raised. Please,
go
ahead.
JULIE BISLAND: Christopher, you're muted. I'm going to unmute
you. Okay, go
ahead.
CHRISTOPHER WILKINSON: Sorry. Jeff, with a smile but I mean it,
Europe has gone onto
summertime, otherwise known as Daylight Saving Time. I think
this
call is too late. Basically, the system has taken the advantage
of the
extra hour. I think the extra hour should incur to the
participants.
When we went onto Daylight Saving Time, instead of having
20:00
UTC calls we should have had 19:00 UTC calls. I don’t mind
joining
a call at 10:00at night but I really have some reservations
about
staying on a call until half-past 11:00 or, at the limit, 12:00
at night.
I can take a call at 3:00 in the morning but the hour that we’ve
been
given is our hour and not your hour. With a smile.
JEFFREY NEUMAN: Okay, thanks. Cheryl, I think, wants to address
that so, Cheryl, go
ahead.
CHERYL LANGDON-ORR: Oh, yeah. Cheryl will address it, I can
assure you. Christopher, I'm
looking forward to how that’s going to work when we switch in
the
other hemisphere because, of course, we’re going to be
absolutely
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equitable with all of the changes of all of the Daylight-Saving
Times
in all of the countries who do so.
And then, how are we going to be equitable with those that don’t
do
it at all, as much of Asia does not? The reason we rotate the
times,
Christopher, is to be as fair and equitable as we can be running
in
a UTC-time base.
And I'm afraid there are always going to be times that
inconvenience some of us and it’s just up to us to decide
whether
we do or do not join for any or all of those calls that are
inconvenient.
The world has too many time zones to be reactive to the
changings
of Daylight Saving. Thank you.
CHRISTOPHER WILKINSON: Cheryl, as the GAC secretary I know very
much in great
detail the time zone issues. I don’t see problems. I'm
including,
especially, Australia. So, please, no lessons on that point. But
as I
said, Jeff, just a smile. I can support this because, at my age,
there
is a certain insomnia factor which helps, but I think this may
explain
some of the rather limited participation we have from certain
parts
of the world. No further comments.
JEFFREY NEUMAN: Okay. Thanks, Christopher. We made a decision
early on, probably
within the first few months of 2016, I think, when we started
this
thing, to stay on UTC time and not change off of that when
anyone
was going through any kind of savings time issue. Yeah, that’s
just
the way. So, sometimes we lose an hour, sometimes we gain an
hour. Okay.
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Let’s move on, then, to the first topic. While that was going
on, I just
forwarded to the group the letter that I got from the GAC Chair,
so
hopefully everyone gets it. We’ll address that at the end but
let’s go
to, right now, the objections. Okay.
So, to the one we left off at – let me just make sure that the
one
that’s being displayed is the one. I think we’re on the new
items. So,
if we go to section C … Yeah, there we go. So, it’s the
string
confusion objection we’re still talking about, so just to
remind/refresh everyone’s recollection.
What we’re talking about now, though, while technically not
string
confusion objection, is if we did go forward with it it would be
some
new type of objection, even though it came under this
category.
That’s a proposal whereby if someone applied for a string that’s
an
exact translation of an existing string that’s in a highly
regulated
sector and the applied-for string would not employ the same
safeguards as the existing string, of course subject to
applicant’s
governing law.
So, in between the last meeting and this one, I went back to
the
Beijing communiqué, which was the communiqué from the GAC
that established this category-one designation. In that part of
the
communiqué, the GAC advised that strings that are linked to
regulated or professional sectors should operate in a way that
is
consistent with applicable law.
And then, they say that these strings are likely to invoke a
level of
implied trust from consumers and carry higher levels of risk
associated with consumer harm.
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So, there are two options that we had on the table at the end of
the
last call. We were talking about either putting this in a
category of,
“Well, let’s discuss this in terms of whether we should
adopt
category one and that type of advice formally, and therefore
you
may not need an objection, or whether we not adopt category
one
and rather handle it as an objection-based from a dispute
resolution
point of view.”
So, again, the two options would be … Well, there are actually
three
options. We don’t have to do any of this. But two of the
options
would be the first one being you could adopt some level of PICs
that
would require these highly sensitive strings to have
requirements
built into the contract. That would be option one.
Or another option, option two, could be that rather than
having
those requirements you could have a dispute process like this
one
where you allow a dispute to be filed based on the fact that
it’s an
exact translation and that they don’t have the same type of
requirements that other existing regulated strings have. I see
GG is
in the queue. GG, do you want to make some comments on this?
GG LEVINE: Hi, Jeff. Yes, I do. Can you hear me okay?
JEFFREY NEUMAN: Yeah, great. Thanks.
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GG LEVINE: Okay. Yeah. Because NABP did submit comments in this
regard, I
wanted to explain the rationale a little bit. The reason that it
was
suggested an objection in the category of string confusion is
that
the potential for confusion by the end-user that the verified or
the
restricted TLD does build in a certain amount of assurance that
a
registrant is appropriately credentialed, which is important
when
you’re talking about things like medicine.
So, if you have something that is a very similar name in
meaning
then you run into the problem of people that are familiar with
the
restrictions of the one might automatically assume that the
same
restrictions are in place in the other. And for that reason, it
is a
potential danger to end-users.
So, it does seem like it’s a potential for confusion. It does
make
sense, at least to my mind, that standing for an objection. I'm
not
saying that that should take the place of having category
one
formally adopted. I'm not sure how the group feels about that
but it
just seems to make sense to have the opportunity for the panel
to
make a decision on a case-by-case basis when it comes to that
type
of situation. Thanks.
JEFFREY NEUMAN: Yeah. Thanks, GG. That helps with the rationale.
Thank you for
that. Let me go to Christopher, and then Greg.
CHRISTOPHER WILKINSON: Hi. Jeff, seriously this time. Look, I do
not have strong views
about string confusion but I query the addition “subject to
the
applicant’s governing law.” I know that somewhere in the AGB
there
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is a clause to the effect that registries are subject to the law
of their
incorporation.
I have general reservations about that but, specifically
regarding
geographical names, I am opposed. I think that the
geographical
names, whether it’s a matter of string confusion or not, should
be
subject to the jurisdiction of the geography to which they
apply. I'm
reluctant to accept at face value this clause because I think it
harks
back to a clause elsewhere which I think, in geographical names,
is
not applicable. Thank you.
JEFFREY NEUMAN: Yeah. Thanks, Christopher. So, I think the
reason why we added
the “subject to applicable law” during the last meeting was that
if
you can file an objection because an applicant for an exact
translation doesn't implement all of the safeguards that, let’s
say,
an existing registry has, if the reason they haven't done it
was
because certain things are either allowed or disallowed
according
to your local law, you shouldn’t then be penalized for doing
that or
not doing that if your law requires or doesn't require
something
similar.
So, I think that’s why we added it. It wasn’t intended to take
anything
else away. But I, at points, noted that maybe it’s just putting
the
words subject … Go ahead.
CHRISTOPHER WILKINSON: Okay. Well, in that case, I think in this
particular text we
should say just “subject to applicable law” and not “the
applicant’s
applicable law” but just “applicable law,” and to put in pour
mémoire
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that we need to change the applicable law rules applying to
geographical names. Thank you.
JEFFREY NEUMAN: Okay. Thanks, Christopher. Well, we’ll talk
about geographical
names as separate but I understand your point. There are
some
things in the chat. GG agrees to “applicable law” not just
“applicant’s,” but Maxim asked a question, “Then what is
applicable
to what?” Greg, and then Paul. Go ahead, Greg, and then I’ll
jump
in afterward. Greg, go ahead.
GREG SHATAN: Thanks. I'm very sympathetic with the consumer
protection and
trust concepts underlying this suggestion. However, I think
fundamentally this is flawed because this is simply not …
String
confusion is not confusion between the two strings, it’s
maybe
business practice confusion or something along those lines. But
it
has nothing to do, really, with the string itself being confused
with
another string as a string.
So, I feel like if it’s an objection at all it’s an entirely
different kind of
objection. And to do it on the basis of some similarity in
meaning is
both over-inclusive and under-inclusive. Fundamentally, it
has
nothing to do with the string being confusingly similar, or at
all. It
may have to do with consumer confusion but not confusion
about
the string. Again, it’s about the business practices.
And then, I think the dark side of this is this is potentially
anti-
competitive. If there are different business models for carrying
out
a competing plan or type of top-level domain, and perhaps
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.apothecary would have a different set of restrictions and
methods
by which it provides a trusted space, or maybe a less trusted
space,
or a more trusted space. That should be allowed.
If we want to get at consumer trust and at consumer harm, I
don't
think that the way through it for this type of issue is the
string
confusion objection. Thank you.
JEFFREY NEUMAN: Okay. Thanks, Greg. Before I get onto Paul, the
reason why—you
may ask, “Well, there are so many proposals that were made in
the
initial report and so many that we haven't discussed in this
kind of
detail,” one of the reasons we’re discussing it is because it
did
receive significant support from GG, NABP—National
Association
of Boards of Pharmacy—but also the ALAC supported it, the US
Postal Service, INTA—the International Trademark
Association—
and the IPC supported it, although with the concern of how
you
define exact translation. So, they want to drill down on
that.
There was opposition, it should be noted, from the registries,
the
registrars, and the Brand Registry Group. So, I just wanted
to
explain why we’re spending a lot of time on this. I take Greg’s
point,
and Jim’s, as well, in the chat, that if this does go forward as
an
objection it doesn't neatly fit into the string confusion. And
so, we
might need to develop a new process for the new name. But
thanks,
Paul, for letting me just explain that. I’ll go to you,
Paul.
GREG SHATAN: Jeff, if I could just respond momentarily?
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JEFFREY NEUMAN: Oh, sure. Sorry, Paul. Yeah.
GREG SHATAN: I'm not objecting to the concept itself but shoving
it under the string
confusion objection. I agree that, if we were to go forward with
this,
we’ll either have to agree that we are massively changing
string
confusion or we have to come up with something different. I
am
sympathetic with and/or a member of all the organizations …
Well,
not all of them, but several of the organizations you mentioned.
So,
I think it’s for that reason I'm concerned about more on a
“fit”
perspective than on a “goals” perspective. Thanks.
JEFFREY NEUMAN: Yep. Thanks, Greg. Paul, go ahead. Sorry about
that.
PAUL MCGRADY: Yeah, no problem at all. So, on the first issue of
setting to applicant’s
governing law, that was text that I suggested on the last call.
The
reason why it’s “subject to applicant’s governing law” is
that
complying with everybody’s governing law would essentially
eliminate these sorts of strings at all.
So, for example, imagine that there is a .doctor in English. I
don't
know if there is or not. In order to get a second-level
registration,
you have to be a doctor admitted to whatever doctors are
admitted
to in the United States, and they have to maintain whatever
that
they have to maintain.
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If there was, then, a corresponding .doctor but in Cyrillic for
Russian
doctors, who don’t compete with American doctors for the
most
part, then they would need to be licensed and regulated by
whatever the applicant’s governing law is.
To say that .doctor in Cyrillic could only sell second-level
domain
names to doctors that are subject to the governing law of
everywhere in the world would eliminate the ability for that to
exist.
So, we have to find a way to make it narrow and make it make
sense
because the other way doesn't make any sense.
As for the standard here for string confusion, I put it into the
text. I
thought it was helpful. It doesn't call out that exact
translations are
automatically confusing, and therefore out, but it doesn't say
that
they’re automatically in, either.
So, I think, maybe, we either need to decide that we’re going
to
tinker with the actual text and see if we can make this fit or
if we just
say this is something new and we’re not going to proceed.
Thanks.
JEFFREY NEUMAN: Yeah. Thanks, Paul. I think, rather than
discussing where it fits in
and how it fits in, right now, just as I put in a note here,
just trying to
test the waters, here, to see if this is an area that the group
believes
should be included as an objection, and if the answer to that is
yes
then we’ll work on the exact text, where it would fit in, and
all that
kind of stuff.
But right now, I'm just trying to see if we have agreement one
way
or the other, but totally understand the points that were
raised. I
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think the next one is Kathy because I think Christopher and
Greg’s
hands were old hands. So, Kathy, go ahead.
CHRISTOPHER WILKINSON: Not at all. Not an old hand but I'll
wait.
JEFFREY NEUMAN: Oh, okay. Let me go to Kathy, and then I’ll come
back up to you,
Christopher. Kathy, go ahead.
KATHY KLEIMAN: Sorry, mute didn’t want to come off. Hi,
everybody. Okay. So, here
I can see the grounds for objection. I'm just not sure … I
wanted to
ask a question about that. Does the right party have standing in
this
case?
My understanding, and others can let me know, that string
confusion objections would be filed by the applicant or by
other
registries against the applicant, like .mobi versus .mobile in
round
one.
But here, the issue is not just a country’s regulation of
doctors or
pharmacies but, globally, is there a sense that this string
represents
a highly regulated industry? The Beijing Advice Category 1,
as
others have mentioned.
And so, isn’t this an issue for the GAC to get involved in? Are
these
strings not necessarily even identical but too confusingly
similar?
And does it matter, if it’s Chinese versus American, that the
sense
of the global community is that these strings, which will be
serving
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the world as gTLDs, are too close together that people would
confuse them?
So, question of standing: Is this the right mechanism to go
through
a string confusion objection? Should this be going to the
GAC
instead or in addition? And do we want to create standing in
some
way for the GAC to come into an objection like this? Thanks.
JEFFREY NEUMAN: Yeah. Thanks, Kathy. Okay. Christopher, and then
Greg. Paul just
put himself back in the queue, okay. Christopher, go ahead.
CHRISTOPHER WILKINSON: Yeah. Thank you, Jeff. Very, very
briefly. First of all, I agree
with Greg’s comment and analysis about where this issue
should
be. I think it goes beyond string confusion. And secondly, that
is
without prejudice to what I’ve said earlier about the
jurisdiction of
the applicant. Thank you.
JEFFREY NEUMAN: Okay. Thanks, Christopher. I'm going to try to
summarize. I think
everyone here has made really good points. I think we can
all
acknowledge that this does not really fit into the “string
confusion
objection,” and I also take Kathy’s point that, is an objection
like this
really involving the right parties? Or certainly, the party that
would
have standing to object? And yes, maybe another applicant or
another registry would want to challenge but, perhaps, that may
not
be the most appropriate kind of entity to challenge based on
these
grounds.
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I think this also should be connected to the whole notion of
category
one in general. We do need to reserve some time to talk about
how
we handle highly sensitive or strings in highly regulated
industries.
So, what I'm going to make a proposal is that when we
schedule
that time into the work plan to talk about whether or not to
adopt
category one, we also include this subject. So, if we do adopt
a
category one in the form of PICs or some other form then this
may
or may not be necessary.
But I don't want to lose this concept because I do think we need
to
respond to the GAC’s advice on category one and figure out
an
appropriate way to handle highly regulated strings, or at least
figure
out a response to the GAC’s advice on this topic.
So, if that sounds okay? I note Kristine’s comment, “Perhaps
this
could fit into something like a morality and public order
objection.
Anyone of standing could bring that type of objection, including
the
independent objector.” I think that is a good note. Let’s put
that in
the notes for this section and then, when we come back to
this
whole highly regulated strings industry … Sorry. On the subject
of
strings, we’ll come back to this concept.
Okay. I want to switch gears, now. Thank you for that. That was
a
great discussion. I'm going to switch gears, now, to the base
registry
agreement. So, I know it’s like doing a complete turn and a
completely different kind of subject but I think that’s the next
one on
our list.
So, hopefully this one won’t be as … There is not as much, I
think,
on this one to discuss. The first part starts out with an
affirmation of
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the various recommendations that were made back in 2007.
That
includes recommendations ten, 14, 16, implementation
guidelines
K and J.
Basically, that means there must be a base contract provided
to
applicants at the beginning of the process. The initial
registry
agreement must be of a commercially reasonable length. There
must be a renewal expectancy. Registries must apply existing
consensus policies and adopt new consensus policies as they
are
approved.
ICANN should take a consistent approach to the establishment
of
registry fees. Now, these are fees paid to ICANN, not the
fees
charged by registries. And then, implementation guideline J,
the
base contract should balance market certainty and flexibility
for
ICANN to accommodate a rapidly changing marketplace.
So, there are certainly more affirmations and
recommendations
coming up so I just want to stop there. Does anyone have any
objection to affirming those recommendations? Okay. All
right.
The next affirmation is that the working group affirms the
current
practice of maintaining a single base registry agreement
with
“specifications.” Those specifications were one through 13 but
not
everyone got … Specification 12 was only for communities and
specification 13 was only for .brand TLDs.
So, to the extent that anything is recognized in the future
then, in
theory, they could have other specifications. But everyone will
still
be given the same base agreement that’s on the ICANN … Well,
at
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least the current one is on the ICANN website under
“registry
agreement.” Any thoughts on that second affirmation? Okay.
Now, we get to our first new recommendation. I'm already
noticing
that it should say “must” as opposed to “should.” “There must be
a
clear, structured, and efficient method for obtaining exemptions
to
certain requirements of a registry agreement, which allows
ICANN
to consider unique aspects of registry operators and TLD
strings,
as well as provides ICANN the ability to accommodate a
rapidly-
changing marketplace.”
So, what this recommendation basically says is that there may
be
certain situations where certain exemptions are necessary
and,
where those exemptions exist, ICANN needs to have/must have
a
clear, structured, and efficient mechanism for obtaining
those
exemptions.
So, if you were around for the 2012 round and were fortunate
or
unfortunate enough to participate in negotiations, the short
answer
was always no to any kind of exemption or negotiation that
you
wanted to have. ICANN always used the rationale that it didn’t
have
any mechanism to allow differences in contract, even though it
said
you could negotiate. They also said that having exemptions
or
negotiating certain things would not be fair to other
registries.
While this doesn't say that ICANN needs to have or allow
exemptions, this does provide a process, or this does
require
ICANN to develop a process where they can entertain
exceptions,
exemptions, certain things like that. Any questions? Kathy,
go
ahead.
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KATHY KLEIMAN: Still having problems with mute. Okay. Jeff, I
don’t understand this
recommendation, I'm afraid. It’s well-written. I understand
the
words, but I don’t understand how we can spend so much time
creating the rules and then just allow exceptions,
unbounded,
undefined, to certain requirements of the registry agreement.
Which
requirements?
You know how I feel about PICs but at least the PICs now,
under
our new term, are openly negotiated. Can you give some
examples
of the types of requirements that we’re allowing exceptions for
and
exemptions for? I think this is just way too broad and
undefined. It
creates a complete bypass to the very thing we’ve been
spending
years working on. Thanks.
JEFFREY NEUMAN: Thanks, Kathy. I see Kristine and Paul are in
the queue so rather
than me I think Kristine and Paul may help to provide an answer
to
that. If not, I’ll come back to it. Kristine, go ahead.
KRISTINE DORRAIN: Thanks, everybody. I’ll give you one example.
I just skimmed
through the list to see if Rubens was on this list to speak for
himself.
I know specifically that some new registry operators in
South
America experienced problems getting registrars on board. And
so,
because there was no ability to lift, for gTLDs, the Spec 9
registry
vertical separation requirements, registries couldn’t sell their
own
domain names to end-users. Those TLDs couldn’t launch and
they’re still struggling.
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I know that Amazon has chosen to do things differently and
really
have a customer-focused business model for the TLDs we’ve
launched so far. We’ve also struggled to get registrars to want
to
onboard with us because we’re not just trying to sell domain
names
to just anybody who shows up, necessarily. We really have
strong
businesses that we’re building around them.
And so, when you do things a little differently it’s kind of
hard to get
registrars on board. So, I know that’s one that has come up in
the
past. There are other things that have come up where people
have
wanted to or needed to make some different modifications.
Another example I could think of is the hundred names a
registry
operator might be able to reserve to themselves. I know that
some
of the Geo TLDs really struggled with that. There would have
been
an opportunity to put something in the contract allowing that
to
happen with some guardrails but there is no good way to do it.
So,
those are a couple of examples. Maybe Paul can think of
more.
Thanks.
JEFFREY NEUMAN: Thanks, Kristine. Paul, go ahead.
PAUL MCGRADY: Thanks. Yeah, I'm thinking of the biggest one that
came down,
which is Specification 13. Specification 13 is, essentially,
an
exemption from certain requirements of the registry agreement
that
contain other specifications that have been tacked onto it.
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Those that were involved in those negotiations, including
myself,
basically we kept running into a brick wall. It wasn’t as if
ICANN Org
had no idea that brands would want to apply. In fact, they
encouraged brands to apply. There was gobs of talking about
brands applying.
But after 500 or 600 applied, a stonewall went up and the
senior
staff at the time, who are no longer with the organization,
they
simply just dug in and said they weren’t going to budge on
the
issues that were important to make sure that the trademark
underlying the .brand remained safe.
It really wasn’t until we took our hat in hand to the then board
chair,
begging for help, that some small progress was able to be
made.
Finally, we ended up with what was a pretty good outcome.
That
was months, and months, and months, and was completely
unpredictable. It wasn’t clear. It wasn’t structured. It wasn’t
efficient.
That’s, I think, one of the reasons why this particular
recommendation is so important. I see from the chat … I'm
running
out of time but Justine had some things that I think were
interesting,
here, in terms of some rewording of this. I'm wondering if maybe
we
could get her to hop on and talk about those. Thanks.
JEFFREY NEUMAN: Yeah. Thanks, Paul. I was just going to mention
those, as well. I will
wait to see if Justine wants to talk about them or whether
Justine
just wants me to raise them. I think both of the points are
good
points to raise. Okay. I'm not seeing Justine’s hand, so I won’t
make
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her speak. But first one on there … Thanks. Justine says I can
raise
them.
So, the first one is the easiest one, I think, I just to clarify
what’s
meant by ICANN. That means ICANN Org, I believe in this
sense,
it means that allows ICANN Org to consider. That’s not meant
to
say that the community shouldn’t have the opportunity to weigh
in
but, ultimately, at the end of the day, it’s ICANN Org that
makes
those decisions.
Then the other suggestion, which is alternate wording for
obtaining
exemptions. So, Justine asks whether it’s more appropriate to
be
applying for or negotiating for exemptions as opposed to the
words
“obtaining exemptions.” So, while people think about that and
want
to get into the queue to discuss, I'm going to go to Kathy.
Hopefully,
someone will raise their hand, as well, to talk about this
potential
change. Kathy, go ahead.
KATHY KLEIMAN: Thanks, Jeff. Paul, isn’t what you raised,
Specification 13, the
exception that proves the rule? So, a number of applications
came
in and it was not a case-by-case issue. It was hard but it was
a
situation that hadn’t been contemplated in the Applicant
Guidebook,
or if it had it hadn’t been considered or written in. It became
a public
process. The public could track and even comment on what was
happening with Specification 13.
And so, isn’t that exactly the process we want with
specifications
with exceptions? There is no limit to how broad or how narrow
these
can be. These can be very broad exceptions. Here, you’re
positing
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even entire categories or classes of applications could be
handled
by ICANN Org without the public and I don't think that’s
appropriate.
I know that the RPM’s working group, the Right Protection
Mechanism’s working group, has recommendations out to create
some latitude on issues like the 100 because we know that
there
have been some problems with the reservation of only 100
operational/technical terms when certain Geos and others
probably
need more to protect local trademark owners. But that’s a
different
thing.
There are exceptions and some wiggle room that’s being
created
by other groups but this one is just this blanket “ICANN Org
can
create an exception to anything it wants for any reason.”
That
undermines everything we’ve done. Thanks.
JEFFREY NEUMAN: Yeah. Thanks, Kathy. I think Paul raised his
hand, and Greg, to
probably address this so I will let them do it, and then I’ll
put myself
in. Go ahead, Paul.
PAUL MCGRADY: Yeah. Thanks. With regard to the idea that
everybody was really
surprised that brands would apply and that it wasn’t really
contemplated in the process leading up to the last round, I just
don’t
think that’s factual. I don't think that’s historically
accurate. There
was gobs of talk about brands applying and ICANN, if it was
surprised by 600 .brand applications, then shame on them, but
I
don't think they were surprised at all. I think that they just
did not
have a method in place.
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And so, what we’re asking here is, to address Kathy’s
broader
concern, do we want a clear, structured, and efficient method or
do
we want more chaos like we had in the last round? I generally
am
a believer in clearness, and structure, and efficiency.
Thanks.
JEFFREY NEUMAN: Yeah. Thanks, Paul. Yeah. I put myself in after
Greg so, Greg, go
ahead. And then, I see Martin’s got his hand, so I’ll go in
after
Martin. All right. Greg, go ahead.
GREG SHATAN: Thanks. Just to confirm, we’re talking about the
language at the
bottom of page 76, right? Because I don’t see here …
JEFFREY NEUMAN: That’s correct.
GREG SHATAN: I just don’t see that what Kathy is saying is
actually in the language
that’s in here, that this will give ICANN Org an unfettered
power that
makes it possible to change anything, at any time, in any way,
with
input from nobody. All we’re asking for here is a clearer,
structured,
and efficient method, as opposed to the spaghetti battle that we
had
the last time around.
What that method is, what the public involvement in it might be,
how
it works, that’s an implementation question. The idea that
somebody is against—and maybe Kathy is not saying this—a
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clearer, structured, and efficient method, I guess the idea is
being
against any method for exemptions.
I think this is largely reasonable. I think there is some
language that
needs to be tweaked if we want to be more detailed about this
at
this point without veering off into implementation. That’d be
fine but
this seems to be, basically, just a plea for sanity after some
of the
adventures of the previous round.
I'm finding it very hard to even find it objectionable, no
matter how I
look at it. I don't think it creates any kind of blank check but
if we
want to make some statement so that it calms those who think
that
it does, we could. But again, I just don’t see it there. It just
doesn't
appear to be the problem. That’s what I was confused about
what
we were even talking about as I was listening to Kathy.
Thanks.
JEFFREY NEUMAN: Thanks, Greg. Martin, go ahead.
MARTIN SUTTON: Thanks, Jeff. Similar, along the lines that Greg
was talking about, I
can’t see anything wrong with the recommendation as proposed
in
the manner that Kathy outlined her perspective.
I’d also stress the point that, absent of a structured and
clear
process, it can take years to go through and try and adjust
something that, for many, seems a very common-sense
amendment or change that delays the whole application
process
that we saw. It wasn’t just months, it was far, far, longer. In
doing
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that, we’ve delayed even further, then, attending to starting
the next
round and opportunities for others to apply.
So, I think a more structured approach would be very much
more
helpful in making sure that things were done in a timely manner
and
that it didn’t expend a lot of unnecessary resource and energy
that
is often sucked out of the community for these types of
things.
So, I would also just like to mention that I kind of like the
change
here, suggestion, to amend to applying for exemptions rather
than
obtaining exemptions. I think that’s a smart change. Thanks,
Jeff.
JEFFREY NEUMAN: Yeah. Thanks, Martin. I put myself in the queue,
sort of taking off
the chair hat but putting on a registry hat when I was a
registry. So,
back in 2014, when I was working for a registry, we put in a
request
to allow an IGO to use their abbreviation as a name. ICANN
immediately came back to us and said, “No, we don’t have a
process for dealing with that.”
It’s about six years later, now, and they still don’t have a
process.
They have a process to deal with … Of course, the contract
requires
all the registries to reserve all of these names and that has
been
modified from time to time. But actually allowing the IGO to get
the
name that was reserved for the IGO or to block, it has never
been
on ICANN’s high-priority list to develop a process. And
therefore,
six years later, registries still can’t release it when an IGO
wants
that particular name.
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And so, part of the reason I bring this up is that if you don’t
direct
ICANN to develop a process it may never develop a process
because it never rises to a level of priority.
So, this here is only asking for the development of a process.
And I
want to note Kathy’s comment going forward, asking for
extensive
… What is it? Sorry. I just got scrolled up, there. Extensive
public
notice and public comment. But Kristine’s response says, “We
probably don’t need the word ‘extensive.’ If the public doesn't
care,
they don’t comment. If they do, they don’t need to be invited
to
extensively comment.” So, I think the point is to put in there
to make
sure that it’s subject to public comment.
So, in the process … I mean, that sounds like a fair thing to
put into
the recommendation, that there is a clear, structured, and
efficient
method for applying for exemptions or applying and
negotiating
exemptions to certain requirements of the registry agreement.
I'm
putting somewhere in that sentence—I won’t do it now—“subject
to
public notice and comment,” or something like that. Anne is in
the
queue, and then Kathy’s back in. Anne, go ahead.
ANNE AIKMAN-SCALESE: Hi, Jeff. I'm wondering, what’s the
difference between this and an
application change request? Because the language does tend to
be
kind of vague. Yeah, I mean, I support applying for obtaining,
but
when we say the phrase “exemptions to certain requirements,”
is
there any real difference between that and an application
change
request? If not, why wouldn’t we just refer to that? Thank
you.
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JEFFREY NEUMAN: Yeah. Thanks, Anne. It’s a good question. This
is after the point in
which an application is already approved. Then, it’s at the
point
when a registry is going to sign its agreement. So, this is
not
changing a part of the application, necessarily, but really just
to ask
for some part of the base registry agreement, or specification,
for
that matter, to not apply, or apply in a different way, or
something
that they want to do that you would need an agreement change.
So,
the concept is it is a change request, but this is after the
application
has already been approved.
ANNE AIKMAN-SCALESE: So, can we be more specific to say that
it’s a registry agreement,
RA or RAA, change request? Is there any way to make it not
so
loosey-goosey? Because what we’re really talking about here is
an
exemption from something that is in the RA or the RAA.
JEFFREY NEUMAN: Yeah. I mean, we could just say “exemptions to
certain provisions
of the registry agreement.” I mean, it does say “certain
requirements
of the registry agreement.”
ANNE AIKMAN-SCALESE: Okay.
JEFFREY NEUMAN: So, we could say something like “provisions” if
we think
“requirements” is too vague.
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ANNE AIKMAN-SCALESE: I think it would be more specific.
Thanks.
JEFFREY NEUMAN: Sure. Okay. So, there are a couple of things in
the chat but let me
go to Kathy and then … Actually, Kathy, if you don’t mind, can
I
have Karen? Because Karen is in the queue from ICANN Org.
Can
I go to Karen first? Okay. Go ahead, Karen.
KAREN LENTZ: Thank you, Jeff. It’s on a different point so I'm
happy to wait.
JEFFREY NEUMAN: Oh, okay. All right. Then, Kathy, go ahead.
KATHY KLEIMAN: Okay. So, I'm still confused. An applicant
applies pursuant to the
rules of the Applicant Guidebook and the base registry
agreement,
which they agree to accept. They don’t put into the public
portion of
the application that they want to change the rules.
So, one way to handle this is to put it in the public portion of
the
application and put the public on notice right at the start, “We
do not
want to follow the rules of everyone else in the base
registry
agreement.” That would let ICANN know, that provides a time to
let
the public know, and it means the public doesn't have to follow
up
each time.
Otherwise, we do need extensive public notice. The “extensive”
was
on the public notice, not on the public comment. We do need
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extensive public notice. The world, the GAC, everyone needs
to
know if a registry is changing the basic rules that, again,
we’ve just
spent years negotiating.
So, per Anne’s request, yes, we need to make this more
specific.
I’d like to submit we tell applicants to put it in the public
portion of
the application. Otherwise, it becomes a part of private
negotiations
between ICANN Org and the registries, and that’s not what
we’re
here for. Thanks.
JEFFREY NEUMAN: Okay. So, one possibility could be a question …
I mean, in theory,
you could have a question in the application asking whether
the
registry plans to ask for any changes to the registry agreement,
and
then explain those. That could be one way to handle it. But let
me
go to … Karen, I'm going to go Martin, Paul, and Susan, and
then
I’ll come back to you, Karen, if it’s on a different point. Is
that okay?
KAREN LENTZ: Sure. Yes.
JEFFREY NEUMAN: Okay. Go ahead, Martin.
MARTIN SUTTON: Thanks, Jeff. I just thought it might be sensible
just to have a think
back on the .brand perspective. Going into the last round was
a
matter of not being able to declare what you were going to do.
You
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wouldn’t set sail the market in case there is other competition
in
what you’re about to do. So, you would sign up to the rules.
As Kathy mentioned there, you did sign up to a lot of stuff
upfront
but you still had an opportunity to negotiate the agreement.
Unfortunately, it was very much a “no, you can’t have that”
situation.
So, it was obvious in, I think, many of the brand applications
that
they would be closed, secure. And an element of that would
automatically mean that you would only select one registrar to
a
registered domain, so you could secure the whole supply
chain.
So, it was very sensible to approach ICANN and say, “500-odd
to
600-odd brand applicants are going to need a change, and you
don't want to have individual negotiations.” So, this was a way
to
create Specification 13, to support many of the applicants and
to
get through some of those changes that were pretty reasonable
to
assume from the brand-closed set-up.
So, I think that’s important just to realize at this stage. So,
there is
a negotiation to the contract that’s available but it’s very
difficult to
achieve. So, I just wanted to raise that.
JEFFREY NEUMAN: Yeah. Thanks, Martin. Paul and Susan.
PAUL MCGRADY: Thanks. I guess I just don’t understand what more
needs to be done
on the public comment part of this. For both the code of
conduct
and Specification 13, code of conduct exemptions and
Specification
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13 itself, there was a public comment period. So, it’s not like
any of
this is being done behind the scenes.
All we’re talking about here is making the process … I loved
Greg’s
“spaghetti fight.” That’s a great description of what the battle
for
Specification 13 really turned out to be, and that’s for
something
that everybody knew was coming down the pike.
And so, I don't think adding on an additional obligation at
the
application stage to box yourself into a particular business
model
and start to pre-seek exemptions from ICANN Org makes any
sense. It eliminates the ability of people to adapt to
changing
markets.
It would be different if applications were reviewed in 10 days
and
then everybody went to market, but that’s not how this
extremely
inefficient process works. It’s months, years from application
to time
to sign your contract. It also eliminates the possibility of
people
adjusting their business models to get along with other
applicants
with similar strings and that kind of stuff – all the innovation
stuff
we’ve been talking about in terms of resolving conflicts
between
applications.
So, yeah. I think that’s a bridge too far. A 30-day public
comment
period like we did for our Specification 13 and code of
conduct
exemptions, yeah, sounds great. Thanks.
JEFFREY NEUMAN: Okay. Thanks, Paul. So, Susan, do you want to
add anything? I saw
your plus-one of Martin but go ahead.
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SUSAN PAYNE: Yeah, just really quickly. I'm not reading this
recommendation as
applying just at the point of the application and the
consideration of
the application through to signature of the agreement. I'm
reading
this as potentially having applicability after that, as well. If
that’s not
the case, then we need to clarify that.
But on the assumption that that’s the case, I think, whilst,
obviously,
it would be advisable if there is a known change to the
agreement
that an applicant wants to make. I don’t disagree with the
notion that
they should put that in their application and, subject to all of
the
comments that Martin just made about the very real difficulty
in
actually getting any changes made to the base registry
agreement
at all.
But the kind of scenario that Kristine mentioned, with lack
of
registrars in Latin-America, for example, and the difficulty
that
registry operators have. That’s not necessarily something
that
those registry operators knew when they applied. And so, an
all-or-
nothing that says you can only make an amendment if you flag it
in
your application doesn't really reflect the reality of how a
market or
an opportunity might unfold.
So, that would be my reaction. I'm not disputing the idea that
it was
a good idea to be flagging known changes in your application but
I
don’t think that we should be precluding the possibility of
change
coming after the event.
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JEFFREY NEUMAN: Yeah. Thanks, Susan. It’s also important to note
that a lot of
[inaudible]. ICANN came out with a new base agreement after
all
the applications were in, even after, and in some cases some
were
approved. So, certainly, not everyone knows everything going
in.
Now, hopefully, we’ve guarded against that happening again.
But I think at this point all this is asking, in this
recommendation, is
for an efficient process. I’ll give Kathy the last word on this
but just
remember that, if you do have any wording changes that you
think
could put the appropriate guardrails around it, please do
suggest it.
But I think this recommendation has support from most of the
members here. Kathy, go ahead.
KATHY KLEIMAN: Hi, Jeff. I think we need to have the wording
about the public
comment period of a minimum of 30 days and that registries
are
encouraged to put requested changes to the registry agreement
in
the public portion of their application.
Those two changes would involve the public. You heard them
from
various representatives of the groups that would be
monitoring
these applications, not submitting them. So, can we add that
now?
Great. Thank you.
JEFFREY NEUMAN: Sure. So, Kathy, it seems like the “subject to
30-day public
comments” got some support. I will leave it to the list to see
…
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KATHY KLEIMAN: Jeff, can I suggest that it may depend on the
scale, the mass? I'm
not sure 30 days was enough for brands, actually. It was a
very
busy time and that was a lot. It may be a minimum of 30 days
but
some of these, depending on how extensive they are, maybe
more,
and depending on what’s happening in the world at the time.
Thanks.
JEFFREY NEUMAN: Okay. Thanks, Kathy. Karen, go ahead. Thank you
for being so
patient.
KAREN LENTZ: Of course, thank you. I’ve been listening to the
discussion. The
examples have been really helpful. I guess I can read this
recommendation in a couple of ways.
One is that there is just a kind of broad process for anybody
who
wants to propose any kind of change to a provision in the
registry
agreement and the other is almost like a per provision or
per
section. For example, the process that you use for releasing an
IGO
name might not be the same as the process you use for a
registrar
… What is it called? For registrars carrying TLDs, etc.
So, I could also picture it as there is a particular process for
certain
pieces of the agreement but I'm reading it more like the former.
I
don't expect that you all have it all worked out, but I wondered
if that
was close to what I was describing. Thanks.
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JEFFREY NEUMAN: Yeah. Thanks, Karen. Paul has got his hand
raised so, Paul, did
you want to respond?
PAUL MCGRADY: Yeah, thanks. Karen, mine is the first read, which
is that ICANN
established some process, I mean, we’re talking forms,
templates,
timeframes, that kind of thing, where applicants can put in for
these
kinds of requests. We’ve all talked about public comment and
all
that.
I don't think it’s the other where ICANN necessarily, although
it
could as part of this, come up with specific requests –
specific
processes for narrow requests.
If ICANN wanted to do that, great, as long as it wasn’t the
entire
universe and that we were still left with room for innovative
business
models. I hope that’s helpful. Just that in the last round it
was the
spaghetti fight. Thanks.
JEFFREY NEUMAN: Yeah. Thanks, Paul. I don’t have anything to add
to that. Anne puts
in the comments, “Jeff, would it be helpful for us to refer to
the
predictability framework here?”
I don't think so, Anne, in this case, because this is not a
change to
the new gTLD program. This really is a specific change to an
applicant or type of applicant category. I don't think it
necessarily
would fit in the predictability framework, here.
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Again, generally, this is after a registry is already approved
and
either just before they sign their registry agreement or, in
theory, I
guess, after they sign their registry agreement.
Okay. Let’s move on, then, to the next recommendation. Okay.
So,
this one says—I’ve got to work off my document because that’s
so
small—“ICANN must add a contractual provision,” and have
this
part bracketed. We’ll discuss that in a second. But
essentially,
“ICANN must add a contractual provision stating that the
registry
operator will not engage in fraudulent or deceptive
practices.”
Now, this may sound like it’s obvious, and why do you need
something in the agreement that would handle this? The
reason
that this is in here, and it was overwhelmingly endorsed in the
public
comments we got, is because there was a … Was it a PIC DR …?
Yeah, it was a PIC DRP, I think, that was filed.
Essentially, the panelist has said, “Yeah, there was fraud here,
not
a specific violation of the PIC DRP.” So, there was fraud, but
it noted
that there is no penalty in the contract for acting in a
fraudulent
manner. And so, it seemed like a no-brainer to say, “Okay. Well,
we
should put that into the agreement.”
Now, the question is also, how do we put that into the
agreement?
Do we just put it in as a provision, as a rep and warranty in
the base
agreement, or do we put it as a public interest commitment,
which
would mean that ICANN Compliance could enforce it but also a
third
party could file a complaint with ICANN to initiate the PIC DRP?
So,
Griffin, thanks. It was .feedback PIC DRP. Thank you, Griffin.
Paul,
is your hand up to discuss this one or is that leftover?
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PAUL MCGRADY: For this.
JEFFREY NEUMAN: Oh, good. Okay. Go ahead.
PAUL MCGRADY: Thanks. This is one of these tricky semantic
situations because if
you speak against this it’s akin to someone asking, “Have
you
stopped hitting your wife?” There is no answer to that.
My concern about this, just stepping back from ICANN-land for
a
minute, is that if I were signing a regular commercial contract,
and
I think most people who were signing a regular commercial
contract
would not ever agree to a provision like this. There are no
bounds,
here.
It doesn't say “fraud or deceptive practices under California
law.”
This could be under any law, anywhere, of any country. Even
rogue
states, this could be under their law.
It’s sort of strange to me that we’re essentially creating a
third party
bounty on this by having this be a public interest commitment,
rather
than just putting into the base agreement something that you
would
see in a regular commercial contract, saying something along
the
lines that a registry will take reasonable steps to comply
with
applicable law. And then, you would have a choice of law
provision,
and then everybody would know what we were talking about.
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So, again, I understand the oddities of ICANN-land and how
this
ended up here, but it seems both broad and unusual in terms of
its
enforcement. And so, I don't know why we’re not talking about
this
in terms of it being in the base agreement and it being a
more
normal, commercially reasonable provision.
A lot of .brands are going to be signing these agreements and
the
general councilors are going to look at this and say, “What the
heck
does this mean?” and that’s going to be a hard discussion to
explain. Thanks.
JEFFREY NEUMAN: So, Paul, let me ask the question, then. In a
situation where there
is a PIC DRP, and this is an actual situation—I don't know if
Griffin
wants to speak to it or not—where the panelists found that
there
was fraud and ICANN, basically, threw up its hands and said,
“Okay. Well, we can’t really do anything here because fraud is
not
a basis to go after the registry.” If I could put you on the
spot, how
would you propose dealing with something like that?
PAUL MCGRADY: If a panelist found that a registry was acting in
a fraudulent way, if
there was a provision of the base agreement that says, “The
registries will take reasonable actions to comply with the
applicable
law,” and there was a corresponding indication of what that
applicable law was so that it’s knowable—in this case
California, I
suppose—then if they’re acting in a fraudulent way they’re in
breach
of the agreement, and then Compliance would do the
compliance
thing.
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JEFFREY NEUMAN: Yeah. So, unfortunately, in the registry
agreement, if I'm
remembering correctly—and I'm just kind of scrolling through
it
now—I believe, because of lots of really in-depth discussions,
there
is no governing law of the registry agreement.
It is, essentially, governed by applicable law of whoever the
parties
are. So, there is a venue, it says that anything must be
challenged
in a certain location, but it doesn't say that this agreement
is
governed by the law of California or the law of anything else.
So,
it’s an interesting kind of wrinkle, there. Paul, does that
change your
thinking?
PAUL MCGRADY: I mean, I don't think it changes. Try to step back
to any other
industry. It’s essentially saying instead of legislating, which
was
what we would analogize the registry agreement to be, and
putting
in an obligation to comply with applicable law, and then
naming
what that applicable law is.
By the way, that’s very commercial. Lots of contracts add that
stuff.
What we’re saying is we’re not going to have an umbrella
obligation
to comply with law. We’re not going to hide the ball on what
law
we’re talking about. But we are going to create, in essence,
a
private attorney general to go out and take a vague phrase
like
“fraudulent or deceptive practices” that are unrooted, undefined
in
any particular jurisdiction’s law.
They essentially mean whatever the panelist wants them to
mean
and that a private attorney general is, essentially, going to do
the
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enforcement for ICANN Compliance. I would much rather it be
a
commercial process where ICANN Compliance deals with
registries
if they breach their agreement. That’s the point of ICANN
Compliance.
So, it seems to me like what we’re suggesting is something
that
might make sense if we had a governing law provision rooted in
a
jurisdiction’s law and ICANN Compliance wasn’t bothering to
enforce it. But what I'm being told is that we actually don’t
have that.
We haven't given plan A a chance, we’re just jumping to plan
B.
Thanks.
JEFFREY NEUMAN: Okay. Thanks, Paul. Greg, go ahead.
GREG SHATAN: Thanks. I need to look at this. I think Jeff’s note
earlier, there, about
whether this is a PIC or just a stand-alone provision, [you
know,
without] going back and trying to figure how we got here. I
think one
way, maybe, that we felt it was easier to recommend it as a PIC
or
that there’s more of an idea that we’re not going to be
recommending changes to the base agreement but that we do
have
kind of an ability to recommend changes to the PIC. The PIC
also
has somewhat different enforcement/enforceability options
attached to it.
I like, frankly, the specificity here about fraudulent and
deceptive
practices. After my adventure as the rapporteur of the
Jurisdiction Subgroup of the CCWG Accountability, we spent a
lot
of time talking about governing law or lack thereof in the
base
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agreement, and that’s a can of worms I don’t hope to eat again.
I
don't think we’re going to change it for this purpose.
So, I don't think there is any attempt to hide any balls here
but rather
an attempt to shine a light on something that has been seen
as
sufficiently problematic to be called out.
And of course, if we do make reference to US law, fraudulent
and
deceptive practices, while they are a state law issue, are at
least
broadly recognized under US law, the so-called UDAP
Statutes,
Unfair or Deceptive Acts or Practices Statutes, are a
well-known
body of laws. So, at least it’s put there.
And I think tying it back to applicable law might also be
awkward in
the sense that making a legal judgment, depending upon who
we’re
talking about here, certainly doesn't fall into say, maybe, the
hands
of an objector.
So, I think we’d be, essentially, losing the point here by
making
some of the changes made with my colleague – with whom I
almost
always agree but, in this case, you might throw a little
spaghetti at
me. Thanks.
JEFFREY NEUMAN: Thanks, Greg. I see hands in the queue but I
want to bring up the
point Griffin made in the chat, which is probably how we came
up
with this language: “In Spec 11, there is a provision that
requires
registries to require registrars to have in their agreements
prohibiting fraudulent and deceptive practices.”
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So, I think that’s wording that people are familiar with and
that could
be why, when this was drafted for the initial report, we chose
that
language. Although it was a while ago, so I don’t remember
exactly,
but it seems too much of a coincidence not to have been. Anne,
go
ahead.
ANNE AIKMAN-SCALESE: Hi. Thanks, Jeff. I think one reason this
is in here was probably, if
we look back at the public comment, as it’s listed here as a
recommendation that means that the public comment was in
favor
of it.
And I think, sometimes, it’s better not to be too specific. I
really
would suggest that we could say “fraudulent or deceptive
practices
under applicable law” and then, if there is an issue to be
disputed
over what law applies, that gets discussed in the PIC
enforcement
process.
And I really don’t see anything wrong with that because, if we
never
arrived at a governing law through all the discussions in
Work
Stream 2 relative to jurisdiction, etc., that means folks want
to
preserve their position.
But we’ve got public comment in favor of this and, as you
note,
there’s the RAA provision. So, could we just not split the baby
and
just go ahead and say “under applicable law”? Let people talk
about
it in a PIC DRP. Thanks.
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JEFFREY NEUMAN: Yeah. Thanks, Anne. So, what I'm going to
suggest is sort of like
that in the sense that we put in, without the words “in the form
of a
mandatory PIC,” and we just publish “ICANN must add a
contractual provision stating that the registry operator will
not
engage in fraudulent or deceptive practices.”
And then, we ask a question because if there is a public
comment
period, we might as well ask a question as to what people think
from
the community as to whether it should just be a rep or warranty,
or
should it be a PIC which has different consequences? So, I
think
that’s a good way to handle it at this point.
ANNE AIKMAN-SCALESE: Jeff, did we ask that question in the
initial report? Did we put it out
at as a PIC, or what’s the history?
JEFFREY NEUMAN: We just put it out as a requirement, but I don't
think we were very
specific. I’ll have to go back. I don’t recall us being very
specific as
to whether it’s a PIC or not. I’ll have to go back.
ANNE AIKMAN-SCALESE: And the alternative would be that it’s a
provision in the RA?
JEFFREY NEUMAN: Yeah. Either way, it’s enforceable by ICANN
Compliance. But if it’s
a PIC then it is also a third party can initiate the complaint
with
ICANN and, of course, ICANN can impanel a PIC DRP panel.
Sorry
for using the same word there twice. If it’s just a provision in
the
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agreement, it’s just handled through the regular ICANN
Compliance
process.
ANNE AIKMAN-SCALESE: Okay. So, we’ll be asking for public
comment on which of those
methods of enforcement should be pursued, right?
JEFFREY NEUMAN: Right. And then, we’ll probably …
ANNE AIKMAN-SCALESE: Okay, thank you. Thanks.
JEFFREY NEUMAN: Yeah.
ANNE AIKMAN-SCALESE: Thank you.
JEFFREY NEUMAN: Okay. You’re welcome. Paul, is that a new hand?
I'm sorry.
PAUL MCGRADY: Oh, yeah. New hand. Yeah. First of all, I want to
speak and say
we’re getting rid of the private attorney general idea, here, by
taking
out the language that you have struck. I think that’s a good
idea.
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For clarity, are you saying you’re going to run both versions,
the
public comment, one with the private attorney general language
and
one without?
JEFFREY NEUMAN: No. I think we’ll just do this one version, and
then ask a pointed
question about enforcement.
PAUL MCGRADY: Okay, Jeff. Thank you for the clarification. I
appreciate it.
JEFFREY NEUMAN: Yep, sure. Okay. Let’s see. Okay, good. So, I
think this leaves us a
couple of minutes to talk about the letter we got from the GAC.
I’ve
now sent it—I hope it got sent, let me just double-check—to the
new
gTLD list. Yes, it’s on there.
So, we got a letter from Manal on behalf of the GAC. This is the
first
time I’ve ever seen something like this, where it’s a letter
about us
going too quickly. It’s basically saying that they’re
concerned
regarding the changes to the work plan and that, I guess,
we’ve
been going through the subjects faster than we thought we
would.
So, basically, it doesn't ask for a remedy. It just basically
says that
they express concern, that they didn’t anticipate that we would
go
quicker, and they were hoping, I guess, for more time to give
input.
So, we know that they need time, so that’s clear. From a
leadership
perspective, they’re basically drawing the attention to the
change
request we did with the GNSO. Even with the change request
that
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we filed, we said this was the worst-case scenario, that we
were
making efforts to go more quickly, and that we put a longer
time
period in there because we didn’t want to seek another
extension.
So, it was clear, at least to the GNSO Council, that this was
not a
work plan or timeline that was nailed in stone – that this
was,
essentially, the longest we’d need.
I'm just drawing your attention to it. I'm not saying that we
need to
do anything about this at this point. Leadership will be
discussing it.
We just got it in. And I see Cheryl’s got her hand up so,
Cheryl, why
don’t you go ahead?
CHERYL LANGDON-ORR: Thanks, Jeff. I wasn’t trying to jump in
before you finished. I think
it’s important for us to also note for our group that with the
project
change request, which only went in shortly before ICANN67,
we
had already planned all of the deep and quite, I think,
successful
intensive interactions with the Government Advisory Committee
for
ICANN67 anyway.
So, the change request, and indeed the recent changes to the
PDP
work plan, did not affect that very good planning and, I think,
very
worthwhile efforts and energy.
And the other thing is we also need to remember that all that
project
change request did was give us more time in our timeline. It
didn’t
make anything shorter.
So, even if the process had been running on the ridiculously
aspirational original timeline, this kind of seems a little bit
funny to
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me. However, we will take time to discuss, we will make sure
everyone understands, and we will be, as we already are, very,
very
particular about ensuring that anything that we know, and
will
expect the Government Advisory Committee to deeply
interested
and involved with, doesn't get changed on our work plan
going
forward in a way that does not give them a couple of weeks’ time
to
prepare.
And honestly, with the [speed] we’ve got left in our work
plan
anyway, I don’t see how we can do more than that. Anyway,
that’s
clearly my [honest] view. Don’t be surprised if you hear me say
it
again. Thank you.
JEFFREY NEUMAN: Yeah. Thanks, Cheryl. I think that’s right. And
at the end of the day,
we don't want to downplay the significance of what’s going on in
the
world. We all know that and we’re sensitive to that.
If that means we need a longer public comment period after
we
release that draft on our report then we’ll add the time at that
end
as opposed to adding … I mean, I don't even know what we
would
do now to slow down. But we’re not intentionally speeding this
up
so that we’re done with it sooner, we’re just going in the order
that
we had talked about. As Cheryl said, we’ll talk about this at
the
leadership level and then we’ll come back and talk to the group
as
to how we think we should respond.
So, we're taking this seriously, of course. I do want to respond
to
Anne, that the ICANN68 reference is that we’re hoping now, if
you
look at the work plan, to come out with our draft final report
prior to
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ICANN68. I think that’s what they’re commenting on. Let me
go
Christopher, and then Anne, and then I see we’re getting
toward
half-past. Christopher, go ahead.
CHRISTOPHER WILKINSON: Thank you, Jeff. My last statement
tonight, I'm sure. First of
all, I understand from other resources that the GAC has sent
a
similar letter to the ePDP group about the privacy and
WHOIS.
Secondly, I have not seen the letter that you’ve referred to
from the
GAC and I hope that, sooner rather than later, staff will post
it to the
list. But my main point is that I don’t understand what the
rationale
was, ever, for the so-called “acceleration” of your PDP.
We’re
dealing with the prospect of a major global recession. I know
from
personal experience that launching new top-level domains in
a
recession is a bad idea. I must have missed something when
you
were all in Cancún. But why? Why is there such a hurry?
Thank
you.
JEFFREY NEUMAN: Okay. Thanks, Christopher. So, the e-mail is on
the list. You should
find the letter. And then, like I said, we’ll come back and let
you
know what our recommendation is. Anne, last word.
ANNE AIKMAN-SCALESE: Okay. Just quickly, Jeff, and I think you
guys will probably
remember this. In one of the GAC sessions on SubPro, they
commented that they were reticent to make a lot of very firm
communiqué comments on SubPro when so many people weren’t
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able to attend or have input. There was a lot of discussion
about the
GAC saying, “Well, we’ll have a chance to address it in a
more
global manner with more members participating actively
during
ICANN68.”
So, I think that whatever we respond to them we need to be
cognizant that that was why they refrained from too much
strict
comment on the draft, on the issues that we went over with
them.
And maybe there is a way that we could have some issues
that,
even the ones that we discussed at ICANN67, still be open or
something. I can’t recall what the timeline is but there was
specific
discussion at the GAC about, “Let’s not try to comment too
strictly
on this because we don’t have enough members, but we will
have
at ICANN68.”
JEFFREY NEUMAN: Okay. Thanks, Anne. I know we’re over and some
of us have to
head to another call. Just keep in mind, as Annebeth says,
ICANN68 is not going to be face-to-face. It’s not going to
happen.
Yeah. There is not going to be a face-to-face, so we’re going to
deal
with these issues anyway.
All right. The next call for our group is on Tuesday, April 14
th, at
03:00 UTC for 90 minutes. And then, the call on Thursday, just
a
reminder, is an extended, I believe, two-hour call. So, thank
you,
everyone, for staying a couple of minutes over. We’ll talk to
you.
Have as good of a weekend as you can and happy holidays to
those
that are celebrating currently and those that will celebrate
over the
weekend. Thanks.
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JULIE HAMMER: Thank you, Jeff. Thanks, everyone, for joining.
This meeting is
adjourned.
[END OF TRANSCRIPTION]
ICANN Transcription